Before
the Court is Plaintiffs' Motion to Preclude Service of
Subpoenas to Produce Records on Non-Parties [Doc. No. 39].
Defendant filed an expedited response [Doc. 41] and
Plaintiffs filed a reply [Doc. No. 42]. Defendant also filed
an opposed motion for extension of the discovery deadline
[Doc. No. 44]. The matter is fully briefed and at issue.

BACKGROUND

On
January 19, 2018, Defendant filed notices with the Court,
indicating Defendant's intention to serve subpoenas on
eight non-parties [Doc. Nos. 31-38]. The eight subpoenas
directed the recipients to produce records by February 7,
2018. However, the Court's July 7, 2017 Scheduling Order
[Doc. No. 17] ordered discovery to be completed by February
1, 2018.

On
January 25, 2018, Plaintiffs filed their motion to preclude
service of the subpoenas [Doc. No. 39], asserting that the
production request was overly broad and required production
after the discovery cutoff date. The Court ordered Defendant
to file an expedited response [Doc. No. 40]. Defendant filed
a response on January 30, 2018 [Doc. No. 41], but did not
request an extension of the discovery period.

On
January 31, 2018, Plaintiffs filed a reply [Doc. No. 42]. The
Court entered an Order on January 31, 2018 [Doc. No. 43],
acknowledging that the requested document production could
not occur without an extension of the discovery period. On
February 1, 2018, Defendant filed an opposed motion to extend
the discovery period until March 1, 2018 [Doc. No. 44].

ANALYSIS

Plaintiffs
contend that the production request is overly broad and that
Defendant has not demonstrated good cause to extend the
discovery deadline. Defendant argues the Court should permit
service of the subpoenas because: (1) Defendant learned only
recently of the information it seeks to obtain through the
requested records; and (2) that Plaintiffs will not be
prejudiced if Defendant is allowed to obtain discovery past
the cutoff.

Once
the Court enters a scheduling order, Fed.R.Civ.P. 16(b)(4)
provides that such order “may be modified only for good
cause and with the judge's consent.” The good cause
standard “requires the moving party to show that it has
been diligent in attempting to meet the deadlines, which
means it must provide an adequate explanation for any
delay.” Minter v. Prime Equip. Co., 451 F.3d
1196, 1205 n. 4 (10th Cir. 2006); see also
Strope v. Collins, 315 Fed.Appx. 57, 62 (10th
Cir. 2009) (unpublished).[1]

The
fixing of time limits in Rule 16(b) “serves to
stimulate litigants to narrow the areas of inquiry and
advocacy to those they believe are truly relevant and
material.” Fed.R.Civ.P. 16 advisory committee's
note to 1983 Amendment. “Litigants are forced to
establish discovery priorities and thus to do the most
important work first.” Id. Here, Defendant
proposed the schedule that the Court ultimately adopted,
including a February 1, 2018, discovery cutoff. [Doc. Nos. 16
at 9 & 17 at 17].[2]

Seven
of the eight subpoenas are to realtors and/or realty
companies, requesting records and communications dating back
to January 1, 2002. [Doc. Nos. 32-38].[3] Attached to each
subpoena is Exhibit “1, ” which lists the
properties within the Clifford Farms housing addition. The
other subpoena request is to Nextdoor.com [Doc. No. 31]. It
requests all content posted to the Clifford Farms
neighborhood social media page.

Defendant
asserts that service of the eight requested subpoenas was
prompted by the January 15, 2018, deposition testimony of
Plaintiff Brian Wehr. Defendant has attached the relevant
portions of Mr. Wehr's testimony. [Doc. No. 41-1]. Mr.
Wehr described a 15-minute conference call between himself,
his realtor (Darren Webb), the seller's realtor (Carlene
Rupp) and an attorney from the Ryan Whaley firm that occurred
in August 2016, after Mr. Wehr had already made an offer on
the home. According to Mr. Wehr, the attorney from Ryan
Whaley disclosed that there were “some water issues up
at the front of the neighborhood.” [Doc. No. 41-1 at
17]. Mr. Wehr did not recall ever receiving a written
disclosure regarding such issues.

Defendant,
however, admits that Mr. Wehr disclosed this meeting in his
written discovery responses dated October 26, 2017, three
months prior to Mr. Wehr's deposition. Def.'s Resp.
[Doc. No. 41 at 6]; see also Ex. 3 to Def.'s
Resp. [Doc. No. 41-3 at 9-10, 28].[4]Although Mr. Wehr omitted the
fact that an attorney from Ryan Whaley was present and made
the disclosure, Defendant still had notice of the disclosure
in October 2017. Further, Plaintiff contends that both agents
to the sales transaction - Darren Webb and Carlene Rupp -
were identified in a document produced to Defendant on or
about August 3, 2017. Pls.' Reply [Doc. No. 42 at 4];
see also Ex. 2 to Pls.' Reply [Doc. No.
42-2].[5] The Court concludes that Defendant has not
provided an adequate explanation for the delay in serving the
subpoena on Carlene Rupp.

The
Court has reviewed the relevant portions of Mr. Wehr's
deposition testimony. Although Defendant contends that the
other seven subpoenas were also prompted by Mr. Wehr's
testimony, Mr. Wehr's testimony does not appear to relate
at all to these seven production requests. There is no
reference to Nextdoor.com in Mr. Wehr's testimony or to a
neighborhood social media page. Further, the other realtors
were not involved in the disclosure meeting between ...

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